The defendant was diagnosed as being HIV positive. Knowing of this he had unprotected sexual intercourse with two women. With the first woman he insisted that the intercourse was without protection having told her he had had a vasectomy. With the second he had used protection initially but later in the relationship had unprotected sex. He claimed that both were aware of his condition and had consented to unprotected intercourse with full knowledge of the risk. The women disputed this. The trial judge refused to allow the issue of consent to be put before the jury on the grounds that Clarence had been undermined and was no longer good law and the decision in R v Brown & ors [1994] 1 AC 212 had deprived the women of the legal capacity to consent to GBH in sexual activity.

Held:

The case was remitted for retrial.

The Court agreed that Clarence was no longer good law. Those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it will be liable under s.20. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative.

If however, the victim does in fact consent to the risk, this will provide a defence under s.20. Although the two are inevitably linked, the ultimate question is not knowledge, but consent.

Judge LJ:

"We shall confine ourselves to reflecting that unless you are prepared to take whatever risk of sexually transmitted infection there may be, it is unlikely that you would consent to a risk of major consequent illness if you were ignorant of it. That said, in every case where these issues arise, the question whether the defendant was or was not reckless, and whether the victim did or did not consent to the risk of a sexually transmitted disease is one of fact, and case specific."

Obiter dicta

We repeat that the Crown did not allege, and we therefore are not considering the deliberate infection, or spreading of HIV with intent to cause grievous bodily harm. In such circumstances, the application of what we may describe as the principle in Brown means that the agreement of the participants would provide no defence to a charge under s 18 of the 1861 Act.